Judge allows smoking ban lawsuit to advance

A lawsuit challenging a countywide smoking ban will proceed in district court.

Ninth District Judge Nancy Guthrie issued a ruling Tuesday afternoon denying county attorney Keith Gingery’s motion to dismiss the lawsuit.

In her ruling, Guthrie said the case meets several state criteria that warrant judicial review and should be allowed to continue in court.

“The court finds that [the Smokefree Air Rule] is a final order of an administrative agency with no further administrative remedy available and it is thereby subject to judicial review by the court,” Guthrie said in the ruling.

Flat Creek Development, which owns the Virginian Saloon, and three other organizations filed the lawsuit on the grounds that the Teton District Board of Health does not have the authority to approve such a rule, that the regulations are vague and that smoking is a legal right.

The Wyoming Contractors Association, Wyoming Trucking Association and the State Liquor Association are the additional parties listed in the lawsuit.

The Teton District Board of Health in March approved the county Smokefree Air Rule, which bans smoking in all public areas, including bars and restaurants, and extends 20 feet from such businesses.

Although Guthrie did not address many of Flat Creek’s constitutional charges against the ban, she did say the company has a “genuine interest” in the issue going before the court because of a potential to lose business.

“Plaintiffs claim they would be directly affected by the rule as it would cause them to incur the costs of compliance, require them to monitor their employees’ personal lifestyle choices, could result in the loss of business and threatens them with criminal prosecution with severe penalties,” Guthrie said in the ruling. “The court finds that plaintiffs have an existing and genuine interest in adjudication of the matter.”

During a Sept. 10 hearing regarding the county’s motion to dismiss the lawsuit, attorneys largely debated the authority of the board of health to approve such a ban.

Gingery, who filed the motion to dismiss the lawsuit in June, argued that state law affords the board the authority to “enact rules and regulations pertaining to the prevention of disease and the promotion of public health.”

Steven Freudenthal, who represented Flat Creek in the hearing earlier this month, said smoking is not a disease and that the board is encroaching on the functions of the municipality of Jackson by approving a ban that affects business within the town limits.

In her ruling, Guthrie acknowledges the board’s authority but said state law does not provide a review process.

“Although the district boards of health may not enact rules ‘less effective than, or in conflict with, rules and regulations promulgated by the state department of health,’ it does not grant review power over district rules to the state department of health or any other administrative entity.”

Guthrie’s ruling allows Flat Creek Development 10 days to file an amended complaint, from which time the county will have an additional 20 days to file its own answer.

source: http://www.smokersinfo.net/

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